Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice
69 Pages Posted: 13 Nov 2015 Last revised: 26 Dec 2016
Date Written: January 11, 2015
Unified-monistic theories of tort law focus on a single goal of tort law, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to produce a balance between various goals of tort law by integrating several of the considerations underlying the different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. The present article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law, that is, within the framework of tort law theory.
Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by current mixed-pluralistic approaches are identified, and a new mixed-pluralistic approach is proposed which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories on the basis of the profile of the defendant and the nature of his tortious act, concurrently striking a balance between the various goals of tort law, as the situation warrants. Thus the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories — that is, distributive justice and optimal deterrence. Hence, it actually offers a balance between deontological theories, that are interest in the moral aspect, and utilitarian theories, that are more interested in the consequentialist outcome of the tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.
The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.
Keywords: Tort law theory, corrective justice, law and economics, efficiency, optimal deterrence, distributive jusice
JEL Classification: K100
Suggested Citation: Suggested Citation